Excerpt: - .....just say a word or two about the alternative defence first. under the terms of the section, the status of the defendants in respect of their own homesteads will be that of a raiyat or an under raiyat according to the status of the landlord of those homesteads. the landlord of the homesteads in the present case is the appellant who, for the purpose of this argument, may be assumed to hold a lease governed by the transfer of property act. it was therefore contended that section 182, ben. ten. act, could not possibly apply because nobody can say whether the defendants would be raiyats or under raiyats. on the other hand the respondents relied for this purpose upon the decision of s. k. ghose j. in panchanan v. samatul chandra : air1937cal695 . speaking for myself, with all respect to the.....

Judgment:

Henderson, J.

1. These appeals are by the plaintiff. He holds a lease under certain permanent ijaradars and he instituted three suits in order to eject the defendants from certain plots of land comprised within his holding. It is not disputed that the leases in favour of the defendants were granted for residential purposes. The contention of the appellant is that his own lease is governed not by the Bengal Tenancy Act but by the Transfer of Property Act. There were two alternative defences. In the first place, it was contended that the plaintiff himself is a raiyat with the result that the defendants are under raiyats. This point was found in favour of the defence by both the Courts below. Then in the alternative, it was contended that, even if the plaintiff's lease is governed by the Transfer of Property Act the defendants themselves are protected by Section 182, Bengal Tenancy Act.

2. I will just say a word or two about the alternative defence first. Under the terms of the section, the status of the defendants in respect of their own homesteads will be that of a raiyat or an under raiyat according to the status of the landlord of those homesteads. The landlord of the homesteads in the present case is the appellant who, for the purpose of this argument, may be assumed to hold a lease governed by the Transfer of Property Act. It was therefore contended that Section 182, Ben. Ten. Act, could not possibly apply because nobody can say whether the defendants would be raiyats or under raiyats. On the other hand the respondents relied for this purpose upon the decision of S. K. Ghose J. in Panchanan v. Samatul Chandra : AIR1937Cal695 . Speaking for myself, with all respect to the learned Judge, I am not prepared to follow that decision and, had it been necessary to decide this case on this ground, I would have referred it to the Division Bench.

3. I am however satisfied that the decision of the Courts below regarding the status of the appellant is correct. In support of the appeal stress has been laid upon the words 'making gardens, orchards and erecting buildings' which occur in the lease Ex. A. Now, the learned Subordinate Judge came to a finding that the appellant is a raiyat as a result of the consideration of various evidence. The document Ex. A does not create the tenancy at all nor does it even apply to the whole of it. The facts are that the holding originally belonged to one Bakshu Sheikh and was purchased by plaintiff's predecessor in whose favour Ex. A was executed. There was evidence that Bakshu was in fact a cultivating raiyat and the learned Subordinate Judge has accepted it as true. Then again Exhibit A refers to a notice of enhancement of rent served by the two co-sharer landlords upon Bakshu's widow. This reference strongly suggests that action was being taken under Section 13 of the Rent Law which was in existence at that time. Ex. A is merely the result of an agreement between the tenant and the landlord for an enhancement of rent for that particular landlord's share. But in fact there is no direct evidence as to the original purpose of the tenancy. In my opinion, the finding of the Courts below regarding the status of the appellant is correct; following the decisions of this Court therefore the respondents are under-raiyats. The appeals are dismissed with costs. Leave to appeal is refused.